[2017] KEHC 3418 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NUMBER 441 OF 2017

THE PEOPLE MEDIA GROUP LIMITED........APPELLANT

VERSUS

ROBERT MOCHACHE.................................RESPONDENT

(Being an appeal against the Judgement/decree of the Hon. P N Gesora (CM) delivered on 4th August, 2017 in Nairobi CMCC No. 3684 of 2014)

R U L I N G

This is an application by Appellant by way of Notice of Motion dated 28th August, 2017 brought under Provisions of Section 10 of the Judicature Act and Rules 3(1) of the High Court Practice and Procedure Rules, Sections 1B, 1B, 3, 3A 63 (c) of the civil Procedure Act, Cap 21 of the laws of Kenya, Order 212 Rule 22(1), Order 42 Rule 6 and order 51 of the Civil Procedure Rules.

Seeking orders that: -

a) That this honourable court be pleased to grant stay of execution pending appeal of the lower court’s judgment/Decree delivered on 4th August, 2017 for the sum of Ksh.5,500,000/- pending the hearing and final determination of the Appeal.

b) That this Honourable court be pleased and give any further or other orders it may deem fit and just to grant.

The application is supported by the affidavit of Ken Ngaruiya the Chief Operations Officer of the Appellant/applicant Company sworn on 28th August, 2017 in which he reiterates the grounds of the application.

The Respondent filed grounds of opposition and replying affidavit sworn by Purity Makori Advocate sworn on 5th September, 2017 deponing inter alia: -

1. That the matter was heard by Hon. Justice P N Gesora (SM) delivered a judgment on the 4th August, 2017 in CMCC NO. 3684 of 2014 as follows in favour of the Plaintiff: -

“(i) Compensatory General Damages –Kshs.2,500,000/-

(ii) Punitive Damages - Kshs.1,000,000/-

(iii) Aggravated Damages – Ksh.1,000,000/-

(iv) Exemplary Damages – Ksh.1,000,000/-`

Plus costs and interest.”

2. That the Appellant being dissatisfied with the said judgment filed a Memorandum of Appeal dated 21st of August, 2017 seeking the following orders: -

‘a) That this appeal be allowed.

b)That the awards/damages as set out in the lower court’s judgment delivered on 4th August, 2017 be set aside and be substituted to reasonable awards which are not manifestly excessive in the circumstances of the case.

c) Costs of the appeal.’

3. That the Memorandum of Appeal as presented by the Appellant does not intend to challenge the liability of the judgment by the quantum of the judgment as stated out in the prayers sought on the memorandum of Appeal dated 21st of August, 2017.

4. That the Defendants in their submissions dated 4th June, 2017 in page 5 of their submission stated as follows in paragraph 6: -

‘Taking these authorities into account vis-à-vis the circumstances of this case, the mildness of the alleged defamation and the fact that imputation falls under the statutory minimum of Ksh.400,000/-, we submit that a sum between Kshs.500,000/- and Kshs.1,000,000/- in General Damages is adequate compensation.’

5. That indeed in the judgment of the court, the court on quantum states as follows: -

“…….the Defendants counsel submitted between Kshs.500,000/- and Ksh.1,000,000/- in General Damages is adequate Compensation.”

6. That since the Appeal by the Appellant is on quantum and not liability the Appellant before grant of any order of stay should pay the amount of Ksh.1,000,000/- which was proposed as adequate compensation to the Respondent.

7. That the Appellant has also not provided any security of the amount awarded by the Honourable Court in CMCC No. 3684 of 2014.

8. That the court ought to balance two parallel positon and not deny the Respondent the fruits of his judgment in CMCC No. 3683 of 2014 especially so where the Appellant is only appealing on quantum and not liability.

M/S Ochieng counsel for the Applicant submitted that judgment has been entered against the Applicant/Appellant for a total of Kshs.5. 5 Million in Milimani Commercial Court CMCC No. 3684 of 2014. That they are dissatisfied with the judgment and have filed a Memorandum of Appeal filed on 22nd August, 2017. She prays that the court grants stay pending appeal as the Appellant/Applicant will suffer if execution proceeds as there is no evidence that the Plaintiff/Respondent with be in a position to refund the sum if the appeal is successful. She submitted that judgment was delivered on 4th August, 2017 and she made this application timeously. She submits that the Applicant/Respondent is ready to provide security for due execution and abide by any conditions set by the court. She stated the Appellants willingness to have the decretal sum deposited in a joint interest earning account in the name of the advocates for the parties.

M/s Makori for the Respondent opposed the application. She submitted that she has perused the Memorandum of Appeal and noticed that Appellant is not challenging the finding on liability in the lower court but is dissatisfied with the quantum of damages. Counsel submitted that the Appellant had suggested quantum of damages they considered appropriate for the court to award and that they should pay the same before the court can grant stay orders. M/s Ochieng in reply stated that the submission on quantum was not an offer to the Respondent but as a guide in the event the court were considering quantum. They, therefore, cannot be basis for order of payment as settlement.

An application for stay of execution pending appeal is guided by the provisions of Order 42 Rule 6: -

“1. No appeal or second appeal shall operate as a stay of section or proceedings under a decree or order appealed from except in so far as the court appealed from may order but; the court appealed from may for sufficient cause order stay of execution of such decree or order.

2. No order of stay of execution shall be made under Sub-rule (1) unless: -

a|) The court is satisfied that substantial loss may result to the applicant unless the order is made and that

b) The application has been made without unreasonable delay; and

c) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

The grant of the order of stay of execution is at the discretion of the court. The court in exercising the discretion must be satisfied that substantial loss may result to the Applicant if order is not granted. The loss in this matter will be if the Respondents executes, for the decretal sum with no evidence that he may be able to refund if the appeal is successful. The second issue which the court will consider is whether an offer of security for due performance of the decree has been made.

In this application, though there is no evidence that the Respondent if paid the sum cannot be able to refund if the appeal succeeded, the Applicant has offered to deposit the decretal sum in the joint names of the Advocates for the parties. This in my view, offers adequate security for the satisfaction of the decree if the appeal is not successful.

I, therefore, allow the application I, grant the order of stay of execution on condition that the Defendant/Applicant do deposit the whole of the decretal sum in an interest earning account in the joint names of the advocates of the Appellant/Applicant and Respondent within 30 days. If the said deposit is not made within the 30 days, the order of stay of execution to lapse.

Dated, signed and delivered at Nairobi this 8th day of September, 2017.

……………………………………….

S N RIECHI

JUDGE